Cairns v SAE Group Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Cairns v SAE Group Pty Ltd [2024] NSWPICMP 659
APPELLANT:	Damian Cairns
RESPONDENT:	SAE Group Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	17 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; application to rely on statement from worker’s wife describing greater impairment than worker’s history to Medical Assessor; no previous statement obtained; terms of referral required apportionment between primary and secondary psychological injuries; Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited, Zoric v Secretary, Department of Education, and State of New South Wales v Ali considered; Held – Medical Appeal Panel declined to admit the worker’s wife’s statement; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 April 2024 Damian Cairns lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Nicholas Glozier, who issued a Medical Assessment Certificate (MAC) on 27 March 2024.
Mr Cairns relies on the grounds of appeal under s 327(3)(b), (c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out - that the Medical Assessor made a demonstrable error in the application of paragraph 1.32 of the Guidelines. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Cairns pleaded in his Application to Resolve a Dispute that he suffered a psychological injury on 25 October 2017 when his right arm was lacerated on exposed metal in the course of his employment with SAE Group Pty Limited (SAE). On 8 February 2024 a Member of the Personal Injury Commission (Commission) made orders by consent which led to referral to the Medical Assessor for assessment of a primary psychiatric injury.
Using the Psychiatric Impairment Rating Scale (PIRS), the Medical Assessor assessed 7% whole person impairment (WPI) assessing Mr Cairns in class 2 under all of the tables except employability, for which he was assessed in class 4. The Medical Assessor declined to make an allowance for the effect of treatment. He diagnosed a secondary psychological injury which accounted for much of Mr Cairns’ impairment to which he apportioned 1%.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Cairns to undergo a further medical examination because there is sufficient material in the file to determine the appeal.
Mr Cairns sought to rely on a statement from his wife dated 24 April 2024 and said that it was additional relevant information within the meaning of s 327(3)(b).
Mr Cairns submitted that the statement should be admitted because the question of the reliability of his functioning was not previously in issue. His submissions said that the “representations” about his relationship and social functioning are “wildly at odds” with statement from his wife “who is a full time nurse and not suffering a diagnosable psychiatric condition which of itself makes her observations and perceptions more reliable”. He said that the statement “was not taken until now and so was not available nor serving any forensic purpose up till now”.
SAE objected to admission of the statement. It said that the information was available to Mr Cairns and could reasonably have been obtained before the medical assessment. Referring to Petrovic v BC Serv No 14 Pty Limited[1] (Petrovic), SAE said that a statement about the way in which an examination was carried out was not additional relevant information because it was not information of a medical kind which directly related to the decision made. It said that if we did not admit the statement, we should disregard paragraphs 76 to 87 and 90 to 91 of Mr Cairns’ submissions.
[1] [2007] NSWSC 1156
The reliability of Mr Cairns’ functioning has only been placed in issue by Mr Cairns in lodging the appeal and seeking to rely on a statement from Ms Cairns. The Medical Assessor did not say that he had difficulty obtaining a history. He described his mental state examination in detail:
“Mr Cairns was casually-dressed, friendly and engaged (we actually come from the same locality in UK and so could connect about this). He showed a reactive affect, at times joking, although his affect did change negatively on the mention of the incident and he looked as though he was controlling his emotions. He showed good focus and concentration for nearly 90 minutes. He has some degree of low mood, being miserable with more depressive dysfunctional episodes every month or so, triggered by pain related dysfunction. He is not anhedonic. He has some negative views of himself and a degree of cognitive rigidity. He has a low/normal sleep duration, nocturnal nightmares but no daytime re-experiencing phenomena. He is avoidant of excessive gore but exposes himself to other pictures of blood and mutilation in gangster movies and PlayStation games. He reported no panic attacks although can be anxious and aroused if he fears that people are going to bump into him, touch him or look at his vibrating arm. He has some perceived memory difficulties. A repeatedly reassured me that ‘I am not mental’ but acknowledged an alcohol problem.”
The MAC contains detailed information provided by Mr Cairns to the Medical Assessor.
Section 327(3)(b) provides that one of the grounds for appeal is:
“availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),”
The clear words of the legislation preclude admission of Ms Cairns’ statement. Even if it was relevant, the information was available and could reasonably have been obtained before the assessment. Many workers who have suffered a psychological injury rely on a statement from their partner. Paragraph 11.6 of the Guidelines says that “[c]linical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations and from family members and others who may have knowledge of the person.”
On the basis of the authorities set out below, the information is also not “additional relevant information”. In some medical appeals, the worker seeks to rely on a statement seeking to show that a Medical Assessor misinterpreted what was said. Such a statement is usually not additional relevant information. We consider that the authorities apply equally where another person seeks to supply information intended to refute what is in the MAC.
In Petrovic, Hoeben J dealt with the ground of appeal in s 327(3)(b). His Honour said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment.”[2]
[2] At [31].
Hoeben J observed that if a statement going to the way in which a medical assessment was conducted was additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.[3] The same can be said of a statement from a partner who sought to provide a different history as to a worker’s functioning.
[3] At [34].
In Lukacevic v Coates Hire Operations Pty Limited,[4] Hodgson JA said:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”[5]
[4] [2011] NSWCA 112.
[5] At [78].
The fact that the statement is from a person other than the worker does not, of itself, afford it substantial probative value. Ms Cairns is not in a position to provide expert opinion evidence and her lay observations do not carry additional weight because she is a nurse. The statement is not information of “a medical kind”.
In State of New South Wales v Ali[6] Harrison J highlighted the quality of information contemplated by s 327(3)(b):[7]
“First, the information … is neither additional nor relevant as properly understood. The expression ‘additional relevant information’ contemplates or anticipates a qualitative addition to the information otherwise previously available. It is not concerned with the information being merely quantitatively different, in the sense that there is more of the same. That is made plain by the words in parentheses, which emphasise that the additional relevant information must also qualify as information that could not reasonably have been obtained before the medical assessment appealed against. As a matter of plain language, that does not mean or refer to something that could not have been obtained simply because it came later in time. Everything that occurs later than an earlier event is by definition additional in a temporal sense. That is obviously so in the present case, in which the so-called additional relevant information consists of the investigation reports, which uncontroversially ‘could not reasonably have been obtained ... before’.”
And:[8]
“Section 327(3)(b) limits that right of appeal to circumstances where additional relevant information is available but only if the additional information was not available to, and could not reasonably have been obtained by, the plaintiff before the medical assessment appealed against. That clearly anticipates the existence of a provable state of affairs at the time the decision is made. Section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed.”
[6] [2018] NSWSC 1783.
[7] At [32].
[8] At [39].
The evidence Ms Cairns has sought to provide was available before the assessment. We decline to admit her statement.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken only those documents into account in making this determination.
There is very little material in the file from treating doctors who have provided opinions on Mr Cairns’ psychological condition and treatment. His primary treatment has been from his general practitioner. For some time after the injury Mr Cairns refused to see a psychologist. He saw Mr Barton whose report is dated 31 August 2018. Mr Barton said that the referral goal was assistance in coping with pain and changed circumstances.
Mr Cairns was referred to a psychiatrist in about May 2020 but there is no further information in the general practitioner’s notes about any consultation which took place.
Dr Ring, a pain management specialist, reported on 15 June 2020. He noted that Mr Cairns exhibited features of an adjustment disorder with depressive features as well as catastrophic thinking and fear avoidance. Dr Ring made some recommendations which did not involve psychiatric or psychological treatment.
Mr Cairns’ general practitioner referred him to Dr Hagan, psychiatrist, who reported on 21 January 2022. Mr Cairns had stopped all pain medications two weeks before the consultation. Dr Hagan’s diagnosis was:
“His history and presentation suggest a major depressive disorder which has arisen in the context of chronic pain and restrictions due to his workplace injury. He developed an alcohol use disorder with a history of excessive alcohol consumption with adverse effects on his emotional state and general well being.”
Under the heading “Plan”, Dr Hagan wrote:
“He was reluctant to be prescribed any medications having just made the decision to come off all medications. I have advised him that he is likely to require treatment with antidepressant medications given his presentation and history. I recommend that he has further psychiatric review and continue treatment in the context of his presentation and risks related to his mood state and recent history of alcohol excess use.”
Because of the emphasis Mr Cairns’ submissions placed on the reports of the parties’ independent medical examiners, it is relevant to consider their reports in some detail.
Dr Canaris saw Mr Cairns at the request of his solicitors on 15 March 2022, two years before the examination by the Medical Assessor. He essentially reviewed two bundles of material – the notes from Lismore Hospital and the notes from Mr Cairns’ general practitioner current to that date.
The first thing to note is that Dr Canaris saw Mr Cairns on one occasion only. He obtained a history which he described as pressured and discursive and included a long and graphic description of pain.
Dr Canaris description of his mental state examination was brief:
“Your client was interviewed by Zoom at his home. I saw his head and shoulders. He presented as a bald bearded man wearing a red T-shirt. He provided the account documented above in a somewhat overinclusive but nevertheless coherent and consistent manner.
He was palpably anxious speaking of his fear that he was going mad and became teary as he recounted his reliving of his accident.
I found no evidence of psychosis or of an organic brain syndrome.”
Dr Canaris offered a summary and conclusions:
“Your client was injured in a workplace accident on 25 October 2017. The accident was inherently very frightening, and he appears to have had associative reaction when given ketamine for analgesia. Since that time, he has had chronic neuropathic pain.
He appears to have thrown himself compulsively into his work but stopped about two and a half years ago after he lost his temper with a fellow worker.
He describes anxiety fraught reliving of his accident in the form of flashbacks with panic attacks, irritability, fragmented sleep, nightmares, and poor concentration and forgetfulness. He has felt as though life is not worth living. He is socially withdrawn, does not like venturing out of his home, and his self-care has suffered.
He has not seen a psychiatrist for treatment and has had only brief contact with the psychologist. However, he is on a substantial dose of antidepressant prescribed by his GP.
His presentation at interview is dominated by anxiety and with teariness when describing his reliving of his accident.”
Dr Canaris answered a series of questions which do not appear in the report (or otherwise in the file). He said:
“His diagnosis is one of posttraumatic stress disorder. His chronic pain warrants a diagnosis of somatic symptom disorder with predominant pain. The latter diagnosis does not imply that his pain is without a pathophysiological basis but rather reflects the sheer extent to which pain has come to dominate his life.
His posttraumatic stress disorder is a direct consequence of his accident and as such comprises a primary psychological injury. His somatic symptom disorder is secondary to his physical injury.”
Dr Canaris assessed 19% WPI, assessing Mr Cairns under the PIRS in class 2 for self care and personal hygiene, travel and social functioning. Dr Canaris assessed him in class 3 for social and recreational activities and concentration, persistence and pace and class 5 for employability.
Dr Canaris did not add an allowance for the effects of treatment. He noted that Mr Cairns was not seeing a psychiatrist or psychologist and recommended that he should.
In a second report dated 5 June 2023, Dr Canaris responded to a letter, dated six months before, asking him to comment on Dr Bisht’s report and his apportionment of WPI. Dr Canaris did not re-examine Mr Cairns. He said:
“You have set out a number of legal issues on which it is not appropriate for me to comment.
You have also asked me:
·Did the accepted injury make material contribution to the major depressive disorder or overall psychological condition for which Mr Cairns suffered?
·Did the accepted injury of PTSD result in Mr Cairn having an increased vulnerability due to a reduced resilience to the exacerbation of his PTSD and/or developing as a consequence of his physical injuries?
·In short, has the PTSD made a material contribution to the development of the Major Depressive Disorder?”
Dr Canaris said that depressive symptoms are very much part of post-traumatic stress disorder. He said that major depressive disorder and/or persistent depressive disorder (dysthymia) are also a frequent complication of post-traumatic stress disorder. Dr Canaris noted the highly traumatic nature of the accident and said:
“I note in this context also his chronic pain in relation to which I had made a diagnosis of somatic symptom disorder with predominant pain. His pain a significant in this regard as it serves as a reminder of a highly traumatic experience. Whether or not one makes a diagnosis of major depressive disorder in a patient with posttraumatic stress disorder is a judgement call because of the significant overlap between the two conditions.
In response to your questions:
·        His posttraumatic stress disorder has made a substantial contribution to depressive symptoms irrespective of whether a separate diagnosis of major depressive disorder is made.
·        If we accept that his depressive symptoms warrant a separate diagnosis of major depressive disorder, its presence will significantly exacerbate posttraumatic stress disorder and undermined his capacity to cope with the distress this brings in its train.
·        Consequently, his posttraumatic stress disorder is likely to have made a material contribution to major depressive disorder.”

Dr Bisht saw Mr Cairns on 21 July 2022 at the request of SAE’s insurer. He set out a history of the incident and Mr Cairns’ persistent psychological symptoms, his daily activities and functioning. He recorded that Mr Cairns saw a psychologist for a few sessions only and had one appointment with a psychiatrist in 2022. Dr Bisht described his mental state examination in detail:
“The client presented as a middle-aged male of stated age. He was of average build and dressed in clean clothes. There were no abnormal movements, tics, or mannerisms. The psychomotor activity was normal. He did not appear to be responding to non-existing stimuli. He was able to give a good account of self. He was generally cooperative with the interview process. He was not guarded, evasive, suspicious, or challenging throughout the examination. The rapport was good. His eye contact was normal, and his speech was of normal form, prosody, comprehension, and grammatical expression. He described his mood as ‘anxious, depressed’. His affect was of anxious quality for most part of the interview. His range and intensity of affect were restricted and mood congruent. His affect was appropriate to the content of the interview. His thought process was relevant to the process of the interview with no disturbances in thought connections. He tended to focus on apprehension about the future. He denied suicidal, homicidal, or self-harm ideation or plans. There were no perceptual disturbances in any modalities. Cognitively, he able to provide reasonably detailed answers to my questions without prompting, although there was some circumstantiality. His short-term memory was somewhat impaired. He had reasonable insight into his illness and the need for treatment. His judgment was reasonable, as evidenced by him not taking unwarranted risks with his own and others’ safety, and by making good choices regarding his psychiatric treatment, family and finances.”
Dr Bisht diagnosed post-traumatic stress disorder and major depressive disorder. When asked to distinguish between primary and secondary psychological injury he said:
“The psychiatric injury is a combination of a primary injury as a result of the psychological trauma of the subject incident (with loss of blood and fear of dying) and secondary to the worker’s physical injuries sustained in that incident.
The worker has continued to suffer from substantial ramifications of the physical injury, and has needed extensive treatment, I would conclude that the proportionate contribution of the two components is 50% each.”
Dr Bisht assessed 15% WPI and said:
“The injury is a combination of a primary injury as a result of the incident and secondary to the worker’s physical injuries sustained in that incident. The worker has continued to suffer from substantial ramifications of the physical injury, and has needed extensive treatment, I would conclude that the proportionate contribution of the two components is 50% each.
Hence, final impairment due to primary work-related injury (%WPI) = 8%
No additions are to be for treatment effect as the treatment has not brought about substantial improvement.”
Dr Bisht prepared a supplementary report dated 16 February 2024. He did not see Mr Cairns again and was asked to comment on Dr Canaris second report. He was asked to consider if post-traumatic stress disorder had materially contributed to major depressive disorder and said:
“There is a significant overlap between the symptoms of PTSD and major depressive disorder. In addition, not only can the symptoms of PTSD exacerbate major depressive disorder, but the symptoms of major depressive disorder can exacerbate PTSD as well. Hence, there would be bidirectional contribution between these disorders, in terms of exacerbation of the other.”
Dr Bisht said:
“I maintain the view that the worker has both a primary, and a secondary psychological injury, as a result of the work-related injury on 25 October 2017. I note that although Dr Canaris has made a different diagnosis for the worker’s psychiatric condition, but he does appear to acknowledge that the worker has both primary and secondary psychological injuries.”

The MAC

The Medical Assessor set out a detailed history of the injury and Mr Cairns’ subsequent progress and he summarised the treating medical evidence. He said:
“Today Mr Cairns told me that he had not seen a psychologist for a year or two. He recalled seeing one person early who he found no benefit from, because he felt was always closing their eyes. He saw someone else who he felt ‘got it…treated me like a human’ but that the insurer said that they were not adequately qualified. This compounded his problems with the insurers. He thinks he has taken ‘every medication you can name’ and suggested that there may have been Endep and possibly one that sounded a bit like Mirtazapine. He said he saw Dr Hagan last in 2022 but again there were problems with payment. He said today that he is ‘never great with shrinks’ and covered up and didn’t reveal all the truth. He said he has not seen any psychiatrist for well over a year. He reports not having seen any specialist for over a year, attributing this to difficulties with the insurer, case managers, etc.
He says he only sees his GP now and any other specialist. I am unclear whether this is the same GP who prescribes his current cannabinoid-based treatment. He said he has been using this for some months and it has enabled him to reduce his pain medication. He denied any psychiatrist hospitalisation, use of micro-dosing or other of the emergent treatments.
Present treatment: Consultation with GP and cannabinoid prescriber. Current medication: Arginine (7% THC) which he smokes. He takes approximately 6 Paracetamol and 6 Nurofen a day. He uses an antidepressant, Duloxetine 60mg, which he has been on for at least a year and Metoprolol for his blood pressure.”
The Medical Assessor set out Mr Cairns physical and psychological symptoms, general health and work history and daily and social activities. The description of his mental state examination appears above. The Medical Assessor summarised his injuries and diagnoses:
The predominant picture of Mr Cairns condition is of a pervasive low-level depressive syndrome without anhedonia and without pervasive severe low moods, indicative of a Persistent Depressive Disorder. His attribution of this today, and repeatedly those of his treating clinicians in the contemporaneous notes, indicate that this is a secondary psychiatric disorder predicated upon his pain and dysfunction. Even today these are the primary triggers of his lower moods. He also has some nocturnal re-experiencing phenomena, mild avoidance and some associated symptoms which form the primary psychiatric injury of a borderline clinically-significant Post-Traumatic Stress Disorder. This is symptomatically less severe than the mood disorder and appears also to be less impairing. Much of the impairment he describes, e.g. not wanting to return to work, not wanting to engage with coaching or other social activities, are predicated upon his fear of being touched, pain, dislike of being watched, and the associated mood characteristics of this, and his standards, rather than any specific posttraumatic stress-related dysfunction. As such the primary psychiatric injury contributes only a proportion of overall current level of impairment. I note the referral from the PIC indicates that there is both a primary and secondary psychiatric injury as this was raised by the insurers and the specific implication from the referral for the primary psychiatric injury indicates that the Commission is aware there was a separate secondary psychiatric injury. He has an alcohol use disorder.”
Responding to the question in the standard template as to whether there was any subsequent injury, the Medical Assessor said:
“Yes. The secondary psychiatric injury has arisen subsequent to his physical injury and this and accounts for much of the current impairment, e.g. in the domain of self-care over and above any post-traumatic stress disorder associated impairment. It is impossible to calculate an impairment prior to this secondary injury as his impairment appears to have ameliorated a little over time and much intermingled. As such I have taken a beneficent approach and apportioned only 1% (the difference between the current WPI and that with a self care rating of 1, 6%).”
The Medical Assessor commented on the reports of Drs Canaris and Bisht, focussing on their assessments under the PIRS. He set out his own PIRS assessment, assessing 7% WPI and said:
“There is no addition to compensate for the effects of treatment, because the Guides require a substantial or total elimination of impairment, as a result of treatment, before 1-3% can be added to the final WPI.”

SUBMISSIONS

Both parties made written submissions. It is necessary to set them out in some detail.
In summary and in submissions prepared by his solicitor Mr Howard, Mr Cairns said that there was no issue that he suffered a primary psychiatric injury and that both parties had obtained reports as to whether post-traumatic stress disorder made a material contribution to the development of a depressive disorder. Mr Cairns said that the opinions of Drs Canaris and Bisht disposed of any causation issue under s 65A of the Workers Compensation Act 1987 (the 1987 Act) so that the referral was in respect of a psychological injury on 25 July 2017 [sic] which the Medical Assessor did not perform. Mr Cairns’ submissions expanded on a number of grounds of appeal. We observe that the submissions are not easy to follow and that there are some incomplete sentences and missing words.
First, Mr Cairns said that the Medical Assessor misdirected himself as to the assessment he was required to perform should have considered whether the accepted injury of post-traumatic stress disorder contributed to a depressive disorder but instead considered if the physical injury contributed to the depressive disorder. He said that the Medical Assessor failed to engage with the referral which required him to determine if the primary injury made a material contribution to the development of the depressive disorder and that “there is no medical dispute on the opinions of Drs Canaris and Bisht as to the primary psychological injury contributing to the depressive disorder. Mr Cairns said that the Medical Assessor did not refer to those reports which led to his anomalous opinion that the primary psychiatric injury only contributed a proportion of the overall level of impairment. Mr Cairns said that the Medical Assessor misdirected himself in purporting to disentangle the impairment in the absence of evidence, referring to Purkess v Crittenden[9] (Purkess) and Watts v Rake[10] (Watts). The second ground of appeal was that the Medical Assessor’s “misdirection and failure to perform the statutory task” resulted in a constructive failure to exercise jurisdiction.
[9] [1965] HCA34; (1965) 114 CLR 164,168.
[10] [1960] HCA 58.
Mr Cairns’ third ground of appeal was that, in seeking to determine the liability of SAE under s 65A, the Medical Assessor acted ultra vires because only a member of the Commission has jurisdiction to determine questions of liability to pay compensation. He said that the Medical Assessor was required to consider whether any purported secondary psychological injury was “concurrent and/or consequential on the accepted primary injury of post-traumatic stress disorder which was never addressed”.
The fourth ground of appeal relied on was that the Medical Assessor assumed a secondary psychological injury without considering if it was consequential on the accepted primary injury. Mr Cairns said that the Medical Assessor misdirected himself by assuming a secondary psychological injury consequential on the physical injury without considering if the primary psychiatric injury exacerbated the perception of pain which contributed to the development of persistent depressive disorder, including whether post-traumatic stress disorder made him vulnerable
Fifth, Mr Cairns said that having “found as a fact” that it was impossible to disentangle the impairment from post-traumatic stress disorder from the depressive condition, the only basis to do so was speculation and/or conjecture. Referring again to Purkess and Watts, Mr Cairns said that in the absence of cogent evidence disentangling the impairments, there is a legal presumption in his favour that the totality “of the psychological injury” is attributed to the primary injury. If it is impossible to disentangle the impairment “the legal presumption” operates in Mr Cairns’ favour and SAE is liable for the extent of the injury. Mr Cairns said that the Medical Assessor did not have regard to Dr Bisht’s second report.
Mr Cairns relied on a second ground labelled 5 – that the Medical Assessor denied him procedural fairness in failing to have regard to the supplementary reports of Drs Canaris and Bisht.
Sixth, Mr Cairns said that the assessment was made on the basis of incorrect criteria resulting in the MAC containing a “demonstrative error”. The submission was not developed.
Mr Cairns’ seventh ground was that the Medical Assessor erred in failing to consider the effects of treatment when he said that no allowance was required because the Guidelines require substantial or total elimination of treatment. Mr Cairns submitted that the Medical Assessor’s observation that duloxetine 60mg, cannabinoids and analgesia have led to a change in presentation so that an allowance for the effect of treatment was relevant, particularly as the primary psychological injury was a factor in the perception and amplification of pain.
The remainder of the submissions concern the admission of Ms Cairns’ statement, which we have dealt with above, and the errors it was intended to highlight. Apart from seeking to argue by reference to that statement that the Medical Assessor’s assessment was inadequate, Mr Cairns did not make any submissions about the application of the PIRS.
In reply, SAE submitted that Mr Cairns’ submissions did not clearly identify each ground of appeal and succinctly address each ground of appeal. It said there was no submission that the Medical Assessor ought to have assessed a different class under any table of the PIRS.
SAE said that the first four grounds relied on by Mr Cairns were in effect one ground addressing the Medical Assessor’s alleged error in not considering the cause of Mr Cairns’ depressive disorder. It said that the crux of the submission appeared to be that the Medical Assessor did not turn his mind to whether the primary psychological condition of post-traumatic stress disorder materially contributed to the development of a depressive disorder but rather considered whether the physical injury resulted in a secondary psychological injury.
SAE referred to s 65A of the 1987 Act and cl 1.22 of the Guidelines. It said that there was no dispute that Mr Cairns suffered a primary psychological injury and a secondary injury resulting from the physical injury. SAE said that, in order for the Medical Assessor to provide an assessment in respect of the primary injury, he was required to ascertain if there was a separate diagnosable psychological condition not related to the primary injury. SAE said that the Medical Assessor did not purport to determine questions of liability as Mr Cairns submitted.
SAE set out references in the evidence in the file from Mr Cairns’ treating doctors which confirmed the presence of a secondary psychological injury resulting from the physical injury. It said that the Medical Assessor went to great lengths to delineate the primary from the secondary injury and following his consideration concluded that the secondary injury accounted for much of Mr Cairns’ impairment. It said that it was open to the Medical Assessor to use a beneficial approach and apportion 1% WPI to the secondary injury.
With respect to the submission that the Medical Assessor failed to afford Mr Cairns procedural fairness by having regard to the supplementary reports of Drs Canaris and Bisht. SAE said that the Medical Assessor was not required to refer to every piece of evidence and that the Medical Assessor accepted the contention that post-traumatic stress disorder and depressive disorder could affect and contribute to each other.
The remainder of the submissions concerned the admission of Ms Cairns’ statement, dealt with above.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Queanbeyan Racing Club Ltd v Burton[11] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[11] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[12] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[12] [2006] NSWCA 284.
We observe at the outset that the only appeal with respect to the PIRS assessment is based on the statement from Ms Cairns and the submission is to the effect that her statement should be accepted over what Mr Cairns told the Medical Assessor. Mr Cairns did not submit that the Medical Assessor should have made a different assessment under the PIRS based on the history that he provided at the examination. We have declined to admit Ms Cairns’ statement for the reasons set out above. It is therefore not necessary to consider the Medical Assessor’s application of the PIRS.
The Medical Assessor’s assessment of total WPI of 7% therefore stands and consideration of any of the other grounds of appeal is essentially academic because the assessment is below the 15% threshold for the payment of compensation.

Medical dispute

Mr Cairns argued that the reports of Drs Canaris and Bisht were to the effect that there is only one psychological injury and disposed of any causation issue under s 65A. That submission misunderstands both the Medical Assessor’s task and Dr Bisht’s supplementary report.
A Medical Assessor’s task is to determine a medical dispute as defined in s 319 of the 1998 Act:
“319   Definitions
In this Act—
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(a)     the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b)     the worker’s fitness for employment,
(c)     the degree of permanent impairment of the worker as a result of an injury,
(d)     whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)     the nature and extent of loss of hearing suffered by a worker,
(f)     whether impairment is permanent,
(g)     whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Sections 321 and 321A describe the process of referral of a medical dispute.
Section 322(1) provides that the assessment of the degree of permanent impairment is made in accordance with the Guidelines. The assessment is a clinical assessment - a medical examination - made after questions of liability have been determined by the Commission, including whether any disentitling provisions apply.[13] One potential disentitling provision is s 65A(1).
[13] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264, [111].

Section 65A of the 1987 Act provides:
“65A Special provisions for psychological and psychiatric injury
(1)     No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3)     No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4)     If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5)     In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Paragraph 1.22 of the Guidelines amplifies the definitions:
“A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
The dispute raised by SAE’s s 78 notice dated 12 September 2022 was that Mr Cairns’ was not eligible for permanent impairment compensation because his WPI was less than 15% when his secondary psychological injury was taken into account.
The Application to Resolve a Dispute pleaded that Mr Cairns suffered an injury which was the aggravation, acceleration, exacerbation or deterioration of a disease. The injury description was “psychological injury suffered when right arm was lacerated by an exposed edge of a piece of corrugated sheet metal”.
There were two aspects of the dispute between Mr Cairns and SAE – a liability dispute as to whether there was a secondary psychological injury and a medical dispute as to the extent of permanent impairment resulting from the primary psychological injury.
The referral to the Medical Assessor was prepared with the assistance of a Member when the matter was listed before the Commission. There were no consent findings in the Certificate of Determination. The referral was in respect of “date of injury: 25 October 2017 (primary psychological injury).”
In the absence of findings in the Certificate of Determination, the referral of a primary psychological injury – as defined in s 65A – conveyed an agreement between the parties that Mr Cairns was not entitled to compensation for any impairment that resulted from a secondary psychological injury. Mr Cairns and SAE agreed, with the assistance of the Commission, that the relevant disentitling provision applied. If that had not been the case, the referral would have been in respect of a psychological injury without any qualification.
Mr Cairns’ submissions did not take account of the agreed terms of the referral and did not convey an understanding of the definitions of primary and secondary psychological injury in s 65A.
The Medical Assessor was directed by the referral to assess only the impairment arising from the primary psychological injury and to disregard any part of the impairment which arose only as a consequence of the significant physical injury. The MAC shows that he appreciated that distinction.
Mr Cairns sought to gain support from Dr Bisht’s supplementary report but a careful reading of the whole document shows that, while Dr Bisht accepted that there is an overlap between the symptoms and impairments associated with post-traumatic stress disorder and major depressive disorder, he maintained that there was both a primary and a secondary psychological injury and maintained his apportionment between those injuries. Contrary to Mr Cairns’ submissions, a dispute remained after Dr Bisht’s supplementary report. After the liability dispute was determined by the Commission, a medical dispute as to the extent of permanent impairment as a result of the primary psychological injury remained which was referred to the Medical Assessor. The Medical Assessor determined that dispute.

Use of other medical evidence

The Medical Assessor was required to reach his own diagnosis on the day of his examination.[14] He is directed to do so by the Guidelines. Paragraph 11.4 says that the impairment rating must be based on a psychiatric diagnosis and the report must specify the diagnostic criteria on which the report is based.
[14] Guidelines paragraph 1.6.
The Medical Assessor was not bound by the opinions of other psychiatrists who have examined Mr Cairns. While he was determining a medical dispute, his task was to undertake his own medical examination. He is alerted by the standard MAC template to explain where his opinion differs from other examiners but he is not making a decision based on their “evidence” as Mr Cairns’ submissions conveyed.
In State of New South Wales (NSW Department of Education) v Kaur[15] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.”
[15] [2016] NSWSC 346.
The Medical Assessor was not required to make a decision based on the evidence of other doctors – he was required to assess the medical dispute referred to him, using his own expertise and clinical judgement.
Dr Canaris saw Mr Cairns on one occasion, two years before the Medical Assessor. It is likely that an examination on a different day would produce a different PIRS assessment.
Mr Cairns’ reliance on Purkess and Watts is misplaced. In broad terms, those decisions concern the onus of proof in the assessment of damages for negligence where there is a pre-existing condition. A plaintiff must prove the extent of the injury caused by the defendant’s negligence and a defendant carries an evidentiary onus to disentangle the impacts of the injury and pre-existing condition to show the future probable effects of the pre-existing condition. That principle has no relevance to a medical assessment.

Apportionment between the primary and secondary injuries

Dr Canaris did not apportion his assessment between primary and secondary injuries. Both Dr Bisht and the Medical Assessor did.
In Mercy Connect Limited v Kiely[16] (Kiely No 2), Harrison AsJ made obiter dicta comments about the assessment of a secondary psychological injury:
“For convenience, s 65A of the Workers Compensation Act (which I have set out earlier in this judgment) requires a distinction to be drawn between primary psychological injury and secondary psychological injury. Under s 65A(1), no compensation is payable for permanent impairment that results from a secondary psychological injury. When an AMS (or Appeal Panel) assesses the degree of permanent impairment resulting from a primary psychological injury, no regard can be had to any impairment or symptoms resulting from a secondary psychological injury in accordance s 65A(2).
The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.
This two-step process accords with the referral of the Workers Compensation Commission on 24 October 2016. This referral provided for the AMS to assess the degree of WPI arising out of the primary psychological injury sustained by Ms Kiely as a result of the incident, excluding “any impairment or symptoms arising from or attributable to, the secondary psychological condition.”
[16] [2018] NSWSC 1421.
In Ausgrid Management Pty Ltd v Fisk[17] the Medical Appeal Panel referred to the steps outlined in Kiely No 2 and said:
“In this case however, that cannot be done. In this case, with the possible exception of one element of the respondent’s function, the impairments of function and symptoms the respondent has from both his primary psychological injury and secondary psychological injury are completely intermingled. His impairment and symptoms from one injury are indivisible from the impairment and symptoms from the other injury and cannot be disentangled. ...
The Appeal Panel considers that the requirement of s 65A(2) to have no regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. If it were otherwise, then in a case such as this, where the impairment and symptoms from the primary psychological injury and the secondary psychological injury are indivisible and cannot be disentangled, to disregard the impairment and symptoms from the secondary psychological injury would mean to disregard the impairment and symptoms from the primary psychological injury. It would mean that a worker could be assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact a worker did have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the express objectives of the legislation that injured works receive payment for permanent impairment.”
[17] [2023] NSWPICMP 237.
That decision has been followed by other Medical Appeal Panels.
The MAC shows that the Medical Assessor considered that the primary and secondary conditions were intermingled and we agree. He took what he said was a beneficial approach in apportioning only 1% to the secondary injury because the secondary psychological injury accounts for much of the impairment. By way of example, he identified that depressive dysfunction impacted on Mr Cairns’ self care and personal hygiene.
The MAC shows that two-step process identified in Keily No 2 cannot be undertaken. The fact that the conditions are intermingled does not necessarily mean that no deduction should be made. Mr Cairns clearly suffers from a secondary psychological injury. We consider that the method of apportionment the Medical Assessor adopted was open to him in the exercise of his clinical expertise and judgement.

Treatment effect

Clause 1.32 of the Guidelines provides:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
Discussing paragraph 1.32 Chen J said in Zoric v Secretary, Department of Education[18] (Zoric):
“Clause 1.32 of the Guidelines is directed to adjusting the assessable permanent impairment to allow for the effects of treatment in defined circumstances: where there has been long-term effective treatment for an illness or injury that “results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn”. If these matters are demonstrated, then the assessor may “increase the percentage of WPI by 1%, 2% or 3%”.
The clause may thus be understood to involve, and require findings about, the following ‘steps’:
1)First, whether there has been effective long-term treatment of an illness or injury.
2)Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
3)Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.
These steps largely align with the analysis of Adamson J (as her Honour then was) in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [57] (‘Peachey’), and both parties accepted that a proper application of cl 1.32 of the Guidelines requires these steps to be addressed.”
[18] [2024] NSWSC 131 at [58]-[60].
His Honour went on:[19]
“In relation to the first step, therefore, there needs to be a finding about the ‘illness or injury’ that results in permanent impairment and whether there has been effective long-term treatment of that ‘illness or injury’.
In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey at [52] as follows:
‘Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause…’
Further, in relation to the comparative exercise required by cl 1.32, the clause neither requires, nor authorises, a comparison between respective WPI scores at those times, nor does there need ‘to be a post-injury pre-treatment WPI score for the purposes of undertaking the necessary comparison’: Peachey at [53] and [56]. The explanation for this lies, at least in part, in the language of the clause: the focus of cl 1.32 is upon ‘permanent impairment’, not on its degree expressed as a percentage: Peachey at [54] citing Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 at [67].
In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
[19] At [62]-[65].
When the injury under consideration is a primary psychological injury, the treatment that is relevant is that for Mr Cairns’ primary psychological injury of post-traumatic stress disorder. An examination of the records in the file shows that Mr Cairns has had very little treatment for his primary psychological injury. He is not seeing a psychologist or psychiatrist and the current dose of 60 mg of duloxetine is low. His treatment cannot be considered long-term effective treatment.
The limited treatment Mr Cairns has undertaken has been substantially in respect of his secondary psychological injury – the response to the physical injury - as conveyed by the reports of Mr Barton, Dr Ring and Dr Hagan.
We do not accept the submission that the consumption of analgesia is relevant to any allowance for the effect of treatment because they are used for the pain resulting from his physical injury.
Cannabis is being studied as a treatment for post-traumatic stress disorder and is considered an experimental treatment. There is insufficient research evidence for it to be considered an “effective treatment”. More importantly, there is no evidence of Mr Cairns obtained substantial or total elimination of the impairment arising from the primary psychological injury from cannabis.
Paragraph 1.32 is not applicable merely because there has been some long term treatment or even some improvement. It requires a much higher criterion – that the treatment has resulted in apparent substantial or total elimination of impairment.
Though the Medical Assessor’s comments were brief, we agree that it cannot be said that there is substantial elimination of impairment as a result of treatment. The Medical Assessor was correct not to make an allowance for the effect of treatment.
For these reasons, we have determined that the MAC issued on 27 March 2024 should be confirmed.

[2024] NSWPICMP 659

17 September 2024